Family Law Solicitors
1. How the Children Act affects you
Nobody likes going to court. This is particularly true when the case affects or involves children, since it means there is no other way for a disagreement to be settled. But sometimes parental disagreements and family situations develop to the point where a court case is the only answer – particularly if the child is in danger.
The Children Act 1989 is designed to make the situation less traumatic – both for children and for parents and in the normal course of events there is a very real emphasis placed on alternative dispute resolution such has mediation.
Each year a great many couples split up or get divorced. Often, the split is amicable. But when parents can’t agree over arrangements for their children and have failed to resolve their problem by negotiation and mediation the only practical way to settle the disagreement is in court. The Children Act has improved the law relating to parental disputes of this sort and the procedures for resolving problems make more sense. Gone are the blanket rulings about custody and access. Instead the court will make specific orders about particular problems brought to its attention.
What is the Children Act?
The Children Act 1989 came into force on 14 October 1991. It is the most important reform of the law concerning children for many years. It makes the law simpler and easier to use, bringing together the rules concerning the care and upbringing of children in both private and public law.
Above all, the Act is about how we, as a society, believe children should be cared for. It creates a code of law about the upbringing of children to ensure that we achieve the very best for this and future generations. It aims to help children in need get the best deal possible by providing services to their families.
2. Principles guiding the Courts
In all cases involving children, the Children Act lays down a number of important principals that the court must follow.
Children come first
Before taking any decision, the court must put the child’s welfare first. In fact, it will only make an order if it is really to the child’s advantage. To make sure that the child’s interests take priority, the court will take a variety of factors into account.
• the child’s own ascertainable wishes;
• the child’s physical, emotional and educational needs;
• the child’s age, sex, background and other relevant considerations;
• any harm which the child has suffered or might suffer in the future;
• how able the child’s parent (or other relevant persons) are to meet his or her needs;
• how the child might be affected by any change in circumstances;
• the powers available to the court.
A principle of the Children Act is that the best place for children to be brought up and cared for is within their own family. As a result, the court will only make any order when it is satisfied that to do so is positively better for the child than making no order.
Delays must be avoided:
A few weeks are a long time in a child’s life – particularly if their welfare is at risk. The court must therefore set a timetable for any case involving children and ensure the case is heard as quickly as possible.
3. Private Law
Most court cases concerning children involve private disputes between parents – often after separation. These may be disagreements about where a child should live or how often each parent should see the child. In a dispute, parents can apply to the court for a variety of orders under the Children Act.
Section 8 Orders
The Children and Families Act 2014 introduced child arrangements orders, replacing residence and contact orders. Under section 8(1) of the Children Act 1989 as amended, a child arrangements order means an order regulating arrangements relating to any of the following:-
a) With whom the child is to live, spend time or otherwise have contact;
b) When a child is to live, spend time or otherwise have contact with any person.
These provisions came into force on 22 April 2014
Other Section 8 Orders
a) Prohibited Steps Orders
If one partner objects to something that the other is doing concerning their child, then he or she can apply to the court for a Prohibited Steps Order. This will stop the other parent from taking the action outlined in the order without getting the court’s permission first.
b) Specific Issue Orders
If former partners disagree about a specific aspect of their child’s upbringing, for example, which school the child shout go to, the matter can be settled by a Specific Issue Order.
Who can apply?
Parents do not have to be divorcing to apply for a Section 8 Order. An unmarried couple who have ended their relationship may want to consider any of these orders. For example, and unmarried father who has left the family home may want to consider applying for a Child Arrangements Order to regulate his contact with the children that they keep their links with him.
In some cases, it may not be the parents who apply for an order from the court. For example, grandparents may want to contest an adoption order being sought by the Local Authority for their grandchild and ask the court to let the child live with them rather than with strangers.
Local authorities can also apply for some Section 8 Orders. For example, they may apply for a Prohibited Steps or Specific Issue Order. Anyone who is concerned about any aspect of a child’s welfare can apply, but – to protect families from undue interference – only if they get permission from the court. If they are old enough to understand what it means, a child may ask the court for permission to apply. The Court can also make a Section 8 Order during proceedings if it feels this would help the child – for example, at the same time as granting an occupation order
or non-molestation order where there is a concern about domestic violence.
Other Orders under the Children Act 1989
There are two additional private law orders:-
a) Parental Responsibility Orders
If an unmarried father cannot reach a private agreement with the child’s mother, he may apply to the court for an order giving him parental responsibility for his child, to be shared with the mother
b) Family Assistance Orders
In certain cases, a court can made a Family Assistance Order which requires a local authority or a CAFCASS Officer to give family help and support. This type of order can be made only when the court is hearing an application for another order and cannot be applied for
The above only provides a brief explanation of the Children Act relating to private law. SH Family Law offers a free consultation for initial advice and information.
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